Earlier this month, the Texas Health and Human Services Commission (Commission) released a proposed rule, 1 TAC § 354.1452 that prohibits certain marketing activity by Medicaid and CHIP providers. The proposed rule has been created to enforce the restrictions on provider marketing activities enacted in SB 8, 83rd Legislature, Regular Session, 2013. Subject to the Commission’s adoption of the proposed rules, a provider participating in the Texas Medicaid program, including through program-affiliated managed care organizations, may no longer engage in any marketing activity that:

Involves unsolicited personal contact, including door-to-door solicitation, solicitation at a child care facility or other type of facility, direct mail or telephone, with a Medicaid client or a parent whose child is enrolled in Medicaid;

Is directed at the client or parent solely because the client or the parent’s child is receiving Medicaid benefits; and

Is intended to influence the client’s or parent’s choice of provider.

The proposed rule sets forth a variety of permissible marketing activities. Provided there is no unsolicited personal contact, providers may market their Medicaid services at health fairs or other nonprofit outreach events, as well as through the general dissemination of information, including by television, radio, newspaper or billboard advertisement. Furthermore, nothing in the proposed rule prohibits a provider from carrying out certain contractual duties, including providing appointment reminders or coordinating patient care. Additionally, should the Commission adopt the proposed rule, providers may submit proposed marketing materials to the Commission for review and prior authorization for compliance with the marketing rules.

Importantly, neither the Commission’s proposed rule nor the accompanying preamble provides much guidance as to the scope of “general dissemination….” Providers may seek clarification on any provision of the proposed rule by submitting written comments to the Commission no later than Friday, March 7, 2014.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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